P. v. McDaniels

Filed 4/6/06 P. v. McDaniels CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Diane McDaniels was convicted of second degree commercial burglary and petty theft with a prior, and sentenced to two years in state prison. Her attorney has raised no issues on appeal and asks this court for an independent review of the record to determine whether there are any arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) We find no such issues and affirm.

Discussion

The following facts were taken from the preliminary hearing transcript. A Target store security guard saw McDaniels pull empty Target shopping bags out of her purse and fill them with items she had gathered in her shopping cart. She then put a vacuum cleaner in her cart and pushed the cart past the store's cashiers and toward the exit doors without paying for the merchandise. When she went through the first set of exit doors, Target security personnel stopped her and escorted her to the store's security office. A police officer read McDaniels her Miranda^[1] rights and McDaniels admitted stealing a pair of sunglasses. The merchandise taken by McDaniels and her companion was worth about $300.

McDaniels was charged with second degree commercial burglary (Pen. Code, §§ 459, 460, subd. (b); count one)[2] and petty theft with a prior theft conviction (§§ 484, 666; count two). It was alleged that McDaniels had prior theft-related convictions for which she served a term of incarceration, and that she had prior felony convictions, thus rendering her ineligible for probation under section 1203, subdivision (e)(4).

McDaniels requested substitution of counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118, alleging her public defender was not communicating with her. The court held a hearing at which the public defender stated his qualifications for the record and reported that he was performing all the trial preparation tasks McDaniels requested. McDaniels then said she did not really want her counsel replaced. The court denied the motion.

McDaniels agreed to submit the issue of her guilt or innocence on the preliminary hearing transcript, police reports, and documentation of her prior convictions. She expressly waived her rights to a jury or court trial, to confront the witnesses and evidence against her, to call and subpoena her own witnesses, to testify on her own behalf, and not to incriminate herself, knowing she faced a possible three-year state prison sentence if convicted. The court found McDaniels guilty of both counts and found that she had a prior theft-related offense for which she served time and had been sentenced twice to state prison for two felony convictions.

McDaniels requested probation due to her poor health, history of drug addiction, early admission of responsibility, nonviolent criminal record, and absence of significant criminal conduct in the previous four years. Fifty years old, McDaniels was HIV-positive and suffered from arthritis, neuropathy, shingles, depression and anxiety disorders.

Probation recommended the court deny probation. McDaniels had been in custody, on probation, or on parole almost continuously since she was 18 years old. She had eleven felony convictions; twelve misdemeanor convictions; eight grants of probation that resulted in three revocations and two unsuccessful terminations; four prison terms; and eight parole violations. She denied responsibility for the instant crime and for several of her other arrests. She appeared to be under the influence of drugs or medication during her probation interview and admitted using heroin or cocaine and marijuana the night before and methadone and other medications in the morning. She admitted that her cocaine habit cost significantly more than her total income and caused her to steal. Prison officials at Chowchilla informed probation the prison had a facility specifically designed to work with prisoners with AIDS and that McDaniels would receive a complete medical evaluation and medications would be prescribed accordingly.

At the sentencing hearing, the court confirmed that it had read the probation report, McDaniels's sentencing memorandum, and a letter from McDaniels in which she said she was not guilty. McDaniels addressed the court, reviewing her multiple health problems and asking the court not to send her to prison to die. She argued she would not receive proper medical care in prison. She asked the court to place her on probation with a county jail term and a requirement she attend a drug treatment program. The court noted that McDaniels was statutorily ineligible for probation unless the court found this was an â€